As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It is troubling that Kgalema Motlanthe, Deputy President of the ANC thinks (or at least claim that he thinks) that by criticising Mr Jacob Zuma, Barney Pityana wants to deny the “masses the right to choose their own leader.” Although he claims that he welcomes open debate, he seems to suggest that if one criticises the leader of the ANC one is somehow anti-democratic.
This is a monumentally stupid argument and I can only hope that Motlanthe did not really believe it when he wrote it because if he did, he is not the sharpest tool in the shed. Of course in a democracy there is absolutely nothing wrong with anyone criticising any politician – whether they were elected by 4000 ANC delegates at Polokwane or by 15 million South African voters at the polling booth.
To suggest otherwise is to suggest that once those 4000 people at Polokwane made their decision to elect Mr Jacob Zuma as President of the ANC, the other 40 million South Africans have no right to take part in a debate about his suitability to become President of the country. This would be deeply anti-democratic and quite unacceptable in a constitutional state like ours.
Motlanthe then goes on to criticise Prof Pityana for heaping scorn on Mr Zuma while the latter has not been convicted in a court of law.
If, like other citizens, Zuma is to be presumed innocent, then it is not correct to assign to him characteristics of corruptness, dishonesty and flawed moral conduct. There is no such thing as a partial presumption of innocence. A person is either presumed innocent, or not.
I respectfully think that Mr Motlanthe (like many pro-Zuma supporters) is misusing the constitutional principle that in a court of law an individual must be presumed innocent until proven guilty by the state to protect a flawed man. This right enshrined in the constitution is part of the fair trial rights of any accused and is based on the principle that no presiding officer must assume anyone guilty before the state has proven that guilt beyond reasonable doubt.
But the principle that in a court of law a person must be presumed innocent until proven guilty surely cannot and should not be used to shut up any debate in society about the moral character of anyone. Otherwise it would mean that we have no right to make any judgment about any public official’s suitability for office or about his or her morals unless that person has been found guilty of a crime.
That would set such a preposterously high bar for any criticism of a politician that it would undermine the very nature of our democracy. The absurd and dangerous logic of all this would be that we would not be able to say anything bad about Wouter Basson, PW Botha, Magnus Malan and all the other apartheid politicians who have never been found guilty of any crime in any court in the world because they are, after all, also “innocent until proven guilty”.
What Mr Motlanthe and other apologists for Jacob Zuma does not understand or does not want to admit is that there is a difference between being found guilty of a crime (for which one can be sent to jail for 15 years) and being found guilty in the court of public opinion for being stupid, or morally tainted. The former carries heavy penalties and therefore we can not lightly assume anyone guilty of a crime. The latter is a far more elastic concept and we do not need to cede our power to judges to tell us whether a person is morally dubious or not. We are perfectly capable of deciding for ourselves whether we think leaders are morally tainted or not.
What Mr. Motlanthe wants to do is to take away our power as citizens to debate and criticise contenders for the Presidency and to cede that power to judges who will only be able to make a pronouncement on the matter if they find that a person is guilty of a crime. This attitude is deeply disrespectful of our human dignity, which as the Constitutional Court has stated on numerous occasions, presupposes that we have moral agency and that we must be allowed to make up our own minds about who we are, how we want to live and what we think about issues of the day.
The fact remains, a convicted fraudster (Schabir Shaik) has admitted that he gave more than a million Rand to Mr Jacob Zuma. The fact remains that the highest court in the land has confirmed that Mr Zuma did favours for this fraudster after the money was paid. The fact remains, the highest court in the land has confirmed that Mr Shaik had solicited a bribe on behalf of Mr Zuma from an arms company. The fact remains, Mr Zuma has never specifically addressed these issues or given any explanation for why he took the money and why he did the favours. In fact, suspiciously like a real crook he has only darkly muttered about conspiracies, not knowing that for most reasonable people that sounds very dubious and tantamount to an admission of guilt.
None of these incontrovertible facts make Mr Zuma a criminal. But it does make him unfit for public office. Quite frankly, in my opinion it makes him unfit to staff the Home Affairs counter in Barracks Street. Nothing Mr Motlanthe or anyone else say can take away these facts. That is why they have to make arguments about “innocent until proven guilty” and mutter darkly about people not respecting the will of the 4000 delegates at Polokwane.
It suggests the moral bankruptcy on the part of Mr Zuma’s supporters and raise questions about their own morality and fitness to hold public office. If people like Mr Motlanthe really think the only standard for judging the moral character of a person is guilt in a criminal court, we are surely in very, very deep trouble.
I guess he does not really believe that though. He is just parroting these idiotic lines because that is the only way to try and defend the indefensible. Mr Zuma is a deeply flawed and tainted character – no matter what a criminal court may found about his guilt. To suggest that Mr Zuma is beyond criticism is to suggest that us ordinary people have no right to think for ourselves and to question our leaders.
Despite findings by the highest court seriously impugning the integrity of Mr Zuma, he has never once addressed the issues raised by the Shaik case and has never explained why he has taken money from Mr Shaik and then did favours for him. In the absence of any credible explanation we would be irresponsible not to question his integrity. The fact that he and his handlers in the ANC think that he can get away with this without giving any explanation to the public suggests a disregard for us ordinary people of the most profound kind.
The Zuma forces always talk about the infringement of his dignity but it is our dignity that is being affronted because we are being treated as people without any agency and without the right to think for ourselves.BACK TO TOP